concurring in result with opinion
I agree that the trial court properly entered summary judgment for Tabbert, as Hedrick and Snyder cannot establish that Tabbert’s negligence was a proximate cause of their claimed damages. However, I disagree with the majority’s suggestion that appellate attorney’s fees are not damages in a legal malpractice action.
On page seven of its opinion, the majority states that “[ijndeed, Indiana courts have consistently held that a party proves the extent of his harm by showing how he was injured by the outcome of the underlying litigation, not by showing what action he took as a result of that outcome” (emphasis in original). In support of this contention, the majority cites Fricke v. Gray, 705 N.E.2d 1027 (Ind.Ct.App.1999), Cornett v. Johnson, 571 N.E.2d 572 (Ind. Ct.App.1991), and Sanders v. Townsend, 509 N.E.2d 860 (Ind.Ct.App.1987). I do not believe those decisions support the majority’s contention.
Both Fricke and Cornett address causation rather than damages. Sanders does state that it is “axiomatic if the result would not have been otherwise, absent the negligence, the plaintiff is not damaged,” 509 N.E.2d at 864; however, that statement cannot be read as defining or limiting damages for legal malpractice.
We have stated that “[t]he measure of damages recoverable in such cases is generally the value, of the claim lost.” Anderson v. Anderson, 399 N.E.2d 391, 402 (Ind.Ct.App.1979) (emphasis supplied). However, “generally,” to me, does not mean always. It is noted in Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice § 19.10 (4th ed.1996), that expenses of the type Hedrick and Snyder incurred might be recoverable as consequential damages of legal malpractice:
Often a client incurs, litigation expenses in an attempt to avoid, minimize or reduce the damage caused by the attorney’s wrongful conduct. Mitigation expenses may be charged to the attorney even if the efforts were not productive. The key word is “reasonable.” If the effort was made in good faith, with reasonable care, and the expenses bear a reasonable relation to the damages to be avoided or mitigated, the client may recover the expenses incurred.
Mallen and Smith further note that “[t]he client’s injury may be the expense of retaining another attorney. Such damages can result from an attempt to avoid or minimize the consequences of the former attorney’s negligence.” Id. § 19.6.
Had Hedrick and Snyder been able to prove that Tabbert’s negligence in failing to file the Bivens action until after the statute of limitations had run was the proximate cause of the dismissal of their complaints, then I believe they would be entitled to claim appellate attorney’s fees as damages. However, as the dismissal of the Bivens action was also premised upon the application of 28 U.S.C. § 2676, they cannot establish the requisite proximate cause. For these reasons, I respectfully concur in the result.